On December 16, FinCEN issued a discover of proposed rulemaking (NPRM) entitled “Helpful Possession Info Entry and Safeguards, and Use of FinCEN Identifiers for Entities.” The NPRM is meant to implement the Company Transparency Act (CTA) and, particularly, to manipulate which entities might entry company helpful possession info (BOI) that sure entities will quickly be required to report back to FinCEN underneath the CTA. Steptoe beforehand summarized FinCEN’s remaining rule on BOI reporting right here.

What Occurred

The brand new NPRM outlines the precise conditions by which FinCEN will share BOI with third events. The vast majority of these conditions relate to requests by different governmental entities, together with: (1) US federal, state, native, and tribal authorities companies requesting BOI in furtherance of nationwide safety, intelligence, or legislation enforcement exercise; (2) sure overseas governmental entities, together with legislation enforcement companies, judges, and prosecutors, amongst others; (3) federal useful regulators and different acceptable regulatory companies appearing in a supervisory capability assessing monetary establishments for compliance with buyer due diligence (CDD) necessities; and (4) the Division of the Treasury itself.

Sure personal entities may also have the ability to entry BOI in particular circumstances. Extra particularly, underneath proposed Part 1010.955(b)(4), “monetary establishment[s] topic to buyer due diligence necessities underneath relevant legislation” might request BOI info for use in facilitating compliance with FinCEN’s CDD rule. The CDD rule requires sure monetary establishments to gather and retain info concerning the possession and management of authorized entity prospects.

Underneath the CTA, FinCEN might disclose BOI to a monetary establishment provided that “every reporting firm that reported such info consents to such disclosure.” Underneath the proposed rule, the related monetary establishment is liable for acquiring and documenting the consent of the reporting firm and should certify to FinCEN that it’s a monetary establishment searching for to adjust to the CDD rule and has obtained the required consent.

Lastly, the NPRM requires monetary establishments receiving BOI to take plenty of measures to make sure the supplied info is maintained in a safe method, solely used for licensed functions, and solely disclosed to licensed individuals. People working at monetary establishments that obtain BOI are permitted to share BOI with different people in the identical monetary establishment as long as such individuals are “inside the US.” The shortcoming of monetary establishments to share BOI with non-US associates, or with different non-US individuals who assist buyer due diligence capabilities, has probably important operational ramifications for worldwide monetary establishments.

What it Means

In contrast to another jurisdictions, which make some BOI public (e.g., Firms Home within the UK), the FinCEN BOI database will likely be confidential and accessible solely by the above classes of actors. This implies it won’t be accessible to some monetary establishments or to non-financial establishments searching for to conduct due diligence on their prospects or suppliers. Nor will or not it’s accessible to due diligence companies or software program suppliers providing industrial screening instruments.

It’s notable that the NPRM treats monetary establishments with CDD rule compliance necessities otherwise from these with out, by solely permitting monetary establishments coated by the CDD rule to have entry to the BOI in FinCEN’s database. Monetary establishments topic to the CDD rule embody banks, belief firms, credit score unions, mutual funds, brokers or sellers in securities, futures fee retailers, and introducing brokers in commodities. (Traditionally sure state-chartered belief firms weren’t topic to the CDD rule, however this modified in September 2020.) Nevertheless, plenty of different kinds of monetary establishments, together with cash providers companies (MSBs) and sellers in treasured metals, treasured stones, and jewels, are usually not topic to the CDD rule. Which means, underneath the proposed rule, most of these monetary establishments wouldn’t have the ability to entry the FinCEN-reported BOI info for compliance functions.

The CTA authorizes FinCEN to reveal BOI to monetary establishments searching for to adjust to “buyer due diligence necessities underneath relevant legislation.” The NPRM acknowledges that the CTA leaves the phrase “buyer due diligence necessities” undefined and, as such, FinCEN selected to outline that time period narrowly to imply FinCEN’s CDD rule contained at 31 CFR § 1010.230. It explains that FinCEN thought-about taking a broader method, however finally decided “a extra tailor-made method will likely be simpler to manage, scale back uncertainty about what FIs might entry BOI underneath this provision, and higher defend the safety and confidentiality of delicate BOI by limiting the circumstances underneath which FIs might entry BOI.” Nonetheless, the NPRM particularly solicits feedback on “whether or not a broader studying of the phrase ‘buyer due diligence necessities’ is warranted underneath the framework of the CTA, and, in that case, how buyer due diligence necessities needs to be outlined with a purpose to present regulatory readability, defend the safety and confidentiality of BOI, and reduce the chance of abuse.”

Exclusion from entry to BOI for monetary establishments not topic to the CDD rule has plenty of implications. On one hand, such establishments won’t be able to entry a probably helpful and necessary software in conducting know your buyer (KYC) opinions and associated compliance measures, probably inserting them at a drawback as in comparison with different monetary establishments. However, not gaining access to BOI will get rid of any further compliance burdens which may be generated by acquiring buyer consent and submitting requests for BOI to FinCEN. It’ll additionally forestall situations by which a monetary establishment’s determination to not search BOI is later questioned by a regulator.

The Path Forward

FinCEN welcomes feedback on the NPRM by way of February 14, 2023. The NPRM lists plenty of particular questions on subjects together with the readability of the rule, the disclosure limitations, the restrictions on use of BOI by recipients, and the safety and confidentiality necessities, amongst different subjects.